1869 LEVI v. SANDERSON. verdict was obtained for 57. only, but it was a case of concurrent jurisdiction under s. 128 of 9 & 10 Vict. c. 95; and therefore, if the provisions of the former County Courts Acts had remained in force, the plaintiff would have been entitled, as of right, to obtain a rule or order for his costs, which was not the case in Mirfin v. Attwood. Under these circumstances the master having declined to tax the costs, a rule was obtained on behalf of the plaintiff for this purpose; and it was contended for him that as all the restrictive enactments as to costs in the former County Courts Acts were repealed before the trial, and as the case stood unaffected by the new restrictions introduced by the last Act, the plaintiff was entitled to his costs under the Statute of Gloster. The cases of Restall v. London and South Western Railway Company (1), and the late case of Mount v. Taylor (2), were relied on as authorities in his favour. On the defendant's part it was contended that the repeal of the former restrictions of the County Courts Acts as to costs did not revive the Statute of Gloster; and Butcher v. Henderson (3) was cited as an authority on his behalf. It is true that in Butcher v. Henderson (3) this Court declined to follow the decision of Restall v. London and South Western Railway Company (1), but it was expressly pointed out in the judgment of the former case that there the plaintiff had become entitled to sign judgment, and that the transaction was therefore complete, before the last Act came into operation; while in Restall v. London and South Western Railway Company (1) the plaintiff was not entitled to sign judgment, and the transaction remained incomplete until after that period; and though this point was not relied on by the Court of Exchequer, it certainly formed a main ground of the judgment of this Court in Butcher v. Henderson. (3) The case of Mount v. Taylor (2) was a case of exclusive jurisdiction in the superior court, which the Court considered to stand on the same footing as a case of concurrent jurisdiction like the present: and there, as here, the transaction remained incomplete until after the 1st of January, 1868. The Court of Common Pleas in that case held that in cases of exclusive or concurrent jurisdiction, where the (2) Law Rep. 3 C. P. 645. (3) Law Rep. 3 Q. B. 335. (1) Law Rep. 3 Ex. 141. right to costs was substantially preserved by the former County Courts Acts, the Statute of Gloster could not be considered as repealed with regard to such cases, and on this ground, and because the transaction was incomplete before the repeal of the former County Courts Acts took effect, they held the plaintiff entitled to costs, as the Court of Exchequer had done in Restall v. London and South Western Railway Company (1), though on a different ground. Looking to these authorities, and having regard to the desirableness of uniformity of decision in cases of this nature, we are not disposed to dissent from the view taken in the case of Mount v. Taylor (2), and we therefore are of opinion that the plaintiff is entitled to his costs in this case, and that the rule should be made absolute. Attorneys for plaintiff: King & Plummer. Attorney for defendant: Fiddey. Rule absolute. 1869 LEVI บ. SANDERSON. MIRFIN v. ATTWOOD. THIS was a similar rule to that in Levi v. Sanderson, and the facts and dates were similar, but there were no facts bringing the case within s. 128 of 9 & 10 Vict. c. 95; nor any ground for an order or certificate that there was sufficient reason for bringing the action in the superior court, under 15 & 16 Vict. c. 54, s. 4. Nov. 15, 1868. Holl shewed cause. The plaintiff is not entitled to costs. According to Butcher v. Henderson (3) the repeal of 13 & 14 Vict. c. 61, s. 11, does not revive the Statute of Gloster as to actions commenced before the 30 & 31 Vict. c. 142 received the royal assent. The present action was commenced in July, 1867, and it is governed by the principle there laid down. Restall v. London and South Western Railway Company (1) is not in point, as that was a case in which the superior court had concurrent juris(2) Law Rep. 3 C. P. 645. (3) Law Rep. 3 Q. B. 335, 338. 2 G (1) Law Rep. 3 Ex. 141. VOL. IV. 1 MIRFIN v. ATTWOOD. 1869 MIRFIN V. ATTWOOD. diction with the county court, which is not the case here. In Mount v. Taylor (1) a question of title arose, and the county court had no jurisdiction; here the county court had jurisdiction, and there are no facts shewing concurrent jurisdiction or suggesting that it was a proper case to be tried in the superior court, and it has never been decided that in such cases the Statute of Gloster is revived; on the contrary, Willes, J., in Mount v. Taylor (2), expressly lays it down, "with respect to such cases the Statute of Gloster continues repealed." Kemplay, in support of the rule. The right to costs must be governed by the law existing at the time the plaintiff becomes in a position to claim them: he was in this position on the day he recovered the verdict, that is, in April, 1868. At that time s. 33 and sch. C. of 30 & 31 Vict. c. 142, had repealed the several sections in the previous County Court Acts, which took away costs in cases where the plaintiff recovered less than a specified amount; but it left unrepealed the Statute of Gloster, and it is under that statute that the plaintiff is entitled to his costs. The dictum of Blackburn, J., in Butcher v. Henderson (3), that the repeal of 13 & 14 Vict. c. 61, s. 11, does not revive the Statute of Gloster as to actions commenced before the 30 & 31 Vict. c. 142 received the royal assent, was not necessary to the decision of that case, and neither is the distinction made in Mount v. Taylor (1) that the Statute of Gloster is repealed as to a certain class of actions sound. The Statute of Gloster is a general enactment giving the plaintiff his costs in all actions in which he recovers damages. The County Court Acts, 13 & 14 Vict. c. 61, ss. 11, 12, and 15 & 16 Vict. c. 54, s. 4, only modify the Statute of Gloster, and do not repeal it. But even assuming there was a quasi repeal, those enactments having been themselves repealed, the Statute of Gloster would be revived, unless Lord Brougham's Act (13 & 14 Vict. c. 21), s. 5, applies. Assuming, then, that the Statute of Gloster is revived, is the proposition correct that the right to costs depends upon the law existing at the time the plaintiff becomes entitled to claim costs? The right to costs is not a vested right which must be taken away by an express enactment, (2) Law Rep. 3 C. P. at p. 653. (3) Law Rep. 3 Q. B. at p. 338. (1) Law Rep. 3 C. P. 645. it is a matter of procedure which may be altered during the pendency of the action: Wright v. Hale. (1) So, in Charrington v. Meatheringham (2), an action was commenced against parish officers when 13 Geo. 3, c. 78, was in force, which gave them treble costs in the event of the plaintiff being nonsuited; during the pendency of the action that statute was repealed, and judgment was obtained after the coming into operation of 5 & 6 Wm. 4, c. 50, and it was ruled that the defendants were not entitled to treble costs. Reg. v. Mawgan (3) and Roadknight v. Green (4) are also strong authorities for the plaintiff. Lastly, does 13 & 14 Vict. c. 21, s. 5, prevent the revival of the Statute of Gloster? It does not, because that section only applies to cases where an Act has been repealed, not by implication, but in express terms, and the repealing Act is afterwards itself repealed. Of the other cases decided on this subject, Restall v. London and South Western Railway Company (5) is in favour of the plaintiff; and Oldreeve v. Puckridge (6) is not; in both cases the plaintiff was entitled to judgment before the passing of 30 & 31 Vict. c. 142. In Mount v. Taylor (7) the judgment was obtained after the passing of that Act, and in this respect is similar to the present case. Cur. adv. vult. May 12, 1869. The judges having differed, the judgments of Lush and Hayes, JJ., was delivered by HAYES, J. In this case, which was argued in last Michaelmas Term, a rule had been obtained calling on the defendant to shew cause why the plaintiff's costs should not be taxed by the master, and the question related to the operation of the County Courts Act, 1867 (30 & 31 Vict. c. 142), on the costs of actions in the superior courts. The action, which was for goods sold, had been commenced before the passing of that Act. It was by order of a judge tried before the county court of Marylebone, and came on for trial after the Act had come into full operation, when the plaintiff obtained 40. (1) 6 H. & N. 227; 30 L. J. (Ex.) (2) 2 M. & W. 228. (3) 8 A. & E. 496. (4) 9 M. & W. 652. (5) Law Rep. 3 Ex. 141. 1869 MIRFIN V. ATTWOOD. 1869 MIRFIN v. ATTWOOD, a verdict for 137. It was not a case of either exclusive or concurrent jurisdiction in the superior court, nor was it suggested that any ground had existed for obtaining the certificate of a judge, under the repealed County Courts Acts, that there was sufficient reason for bringing such action in the superior court. It was, therefore, a case in which the plaintiff would have been wholly deprived of his costs, if the restrictive enactments on the subject in the previous County Courts Acts (1) had remained in force. But it was contended for the plaintiff that as these enactments had all been repealed while the action was still pending, upon the County Courts Act, 1867, coming into operation, and as the new provisions contained in sect. 5 of the last Act, did not apply to actions commenced before the passing of that Act, the effect was to revive the Statute of Gloster (6 Edw. 1, c. 1), as to actions like the present, and to entitle the plaintiff to his costs under that statute. This point was raised but not decided in the Court of Exchequer, in Restall v. London and South Western Railway (2) and Oldreeve v. Puckridge. (3) The first of these cases was one of concurrent jurisdiction in the superior court, and the second resembled the present case, but in both of them the event on which the costs depended had occurred before the late Act came into operation; and upon this ground the Court held that the right was concluded by the former Acts, which were then unrepealed, and which entitled the plaintiff to his costs in the first case and deprived him of them in the second. The point was again raised in Butcher v. Henderson (4), which was a case of exclusive jurisdiction in the superior court, but there also the case was determined on the ground that the transaction having been complete before the new Act came into operation, it was governed by the enactments of the former County Courts Acts. The Court, however, in delivering judgment on the above ground, referred to actions like the present, where the transaction remained incomplete when the repeal came into operation, and expressed an opinion against the right of the plaintiff to costs, (1) 9 & 10 Vict. c. 95, s. 129; 13 & 14 Vict. c. 61, ss. 11 & 12; 15 & 16 Vict. c. 54, s. 4. (2) Law Rep. 3 Ex. 141. |
